Music Sampling Law: VMG Salsoul v. Madonna, Pelham v. Kraftwerk, and the Divergent US-EU Frameworks

Music sampling — the practice of incorporating a short fragment of an existing sound recording into a new composition — is one of the most contested areas of modern music law. Two leading cases from 2016 and 2019 have shaped the field on opposite sides of the Atlantic with profoundly different outcomes: VMG Salsoul, LLC v. Madonna Louise Ciccone (Ninth Circuit, 2016), which embraced the de minimis exception for sound recording sampling, and Pelham GmbH v. Hütter and Schneider-Esleben (Court of Justice of the European Union, 2019), which set a much stricter test under European Union copyright law. For artists, producers, labels, and music supervisors operating in Italian and European markets, understanding the divergence between US and EU sampling law is now essential — not optional.

This case study analyses the VMG Salsoul v. Madonna decision, the Pelham v. Kraftwerk decision, and their implications for sampling practice in Italy and the European Union, including the more recent dimensions introduced by AI-generated samples and the EU AI Act. It is written for music producers, artists, labels, music supervisors, publishing executives, and lawyers handling sampling clearance and sampling disputes involving Italian or European territory. For the broader music law context, see our pillar guide on music law in Italy and the European framework.

What is sampling, legally

Sampling is the practice of incorporating a portion of an existing sound recording — typically a few seconds, a drum break, a melodic phrase, a vocal snippet — into a new musical work. The technique has been central to hip-hop, electronic music, and pop production since the 1980s and remains one of the most creative and commercially significant practices in modern music.

Legally, sampling involves the reproduction of an existing copyrighted sound recording. Unlike covers (which involve only the underlying composition) or remixes (which involve a more substantial transformation of the original), sampling extracts a specific recorded element and integrates it into a different work. The legal complexity arises from the small size of the sampled portion and from the transformative use of the sample in the new context.

The central legal question across all jurisdictions has been the same: at what threshold does sampling constitute copyright infringement? Is any unauthorised reproduction of a sound recording, however brief, an infringement? Or is there a minimum threshold — a de minimis rule — below which the sampling is too trivial to merit legal protection? The US Ninth Circuit and the CJEU have answered this question in opposite directions.

The two rights involved in sampling

Sampling implicates two distinct copyright protections that must be analysed separately:

• Copyright in the underlying composition (melody, harmony, lyrics): held by the composer and music publisher. A sample that includes recognisable melodic, harmonic, or lyrical content from the original composition raises this copyright;
• Copyright in the sound recording (the specific performance and production): held by the phonogram producer (typically the record label) and, in some jurisdictions, also by the performing artist. Any reproduction of the specific recording — even a fragment — raises this copyright.

Most commercial samples implicate both copyrights and therefore require clearance from both the music publisher (for the composition) and the record label (for the master recording). The strictness of the legal test for each copyright, however, may differ — and this is precisely where the VMG Salsoul and Pelham cases reach different conclusions.

The VMG Salsoul v. Madonna case

The facts

VMG Salsoul, LLC, owner of rights in the 1976 disco track “Love Break” performed by The Salsoul Orchestra, filed a copyright infringement suit against Madonna Louise Ciccone and her producer Shep Pettibone. The claim alleged that the producer had copied a 0.23-second horn segment from “Love Break” and used a modified version of that snippet in the recording of Madonna’s “Vogue” (1990). The sample at issue was a brief horn stab, transformed and integrated into the new track.

The case raised a fundamental question: does the reproduction of such a minimal fragment of a sound recording — less than a quarter of a second — constitute copyright infringement?

The Ninth Circuit decision

On 2 June 2016, the United States Court of Appeals for the Ninth Circuit issued its decision in VMG Salsoul, LLC v. Ciccone, Docket No. 13-57104, affirming the district court’s grant of summary judgment in favour of the defendants. The court held that the de minimis exception applies to sound recording copyrights, just as it applies to other copyright infringement claims.

The court’s reasoning rested on three principal points:

• the longstanding legal rule that de minimis copying — copying so trivial that no harm to the copyright holder can be shown — does not constitute infringement;
• the audience test: a general audience would not recognise the 0.23-second horn segment in “Vogue” as originating from “Love Break”, and therefore the borrowed element lacked the commercial substantiality required for infringement;
• the rejection of the contrary approach taken by the US Court of Appeals for the Sixth Circuit in Bridgeport Music, Inc. v. Dimension Films (2005), which had held that any unauthorised use of a sound recording, however brief, constitutes infringement (“get a licence or do not sample”).

The Ninth Circuit explicitly stated that Bridgeport’s reasoning was “unpersuasive” and that no special rule should apply to sound recording copyrights. The de minimis exception, which applies across all other categories of copyright, applies equally to sound recordings.

The court also reversed the district court’s award of attorney’s fees to the defendants. A claim premised on the legal theory adopted by the Sixth Circuit (the only circuit court to have addressed the issue prior to VMG) was, as a matter of law, objectively reasonable. VMG’s pursuit of the case did not warrant the imposition of attorney’s fees on the losing party.

The split with Bridgeport Music v. Dimension Films

The VMG Salsoul decision created a circuit split in the United States between the Ninth Circuit (de minimis exception applies to sound recordings) and the Sixth Circuit (any unauthorised sound recording reproduction is infringement). The split has not yet been resolved by the US Supreme Court, leaving sampling law in the US in a state of regional divergence: producers operating under Ninth Circuit law have substantially more freedom than those under Sixth Circuit law.

For practical purposes, the major US labels and music publishers continue to require comprehensive sample clearance regardless of the circuit, given the litigation risk and the uncertainty of forum selection. But the VMG Salsoul ruling preserved the de minimis principle as a defensive tool in US sampling litigation.

The Pelham v. Kraftwerk case

The facts and 20-year litigation

The Pelham case is one of the longest-running music copyright disputes in European history. In 1997, German producer Moses Pelham released a track titled “Nur mir” performed by rapper Sabrina Setlur, which incorporated a two-second rhythm sample from “Metall auf Metall” by the German electronic music pioneers Kraftwerk (Ralf Hütter and Florian Schneider-Esleben), originally released in 1977.

Kraftwerk filed suit in German courts seeking damages and injunctive relief. The case wound through the German court system for two decades, reaching the German Federal Court of Justice (Bundesgerichtshof) multiple times and ultimately being referred to the Court of Justice of the European Union (CJEU) for a preliminary ruling on the interpretation of EU copyright law.

The CJEU decision

On 29 July 2019, the CJEU issued its judgment in Case C-476/17, Pelham GmbH and others v. Ralf Hütter and Florian Schneider-Esleben. The court addressed several fundamental questions about the scope of phonogram producers’ rights under EU copyright law, in particular Article 2(c) of Directive 2001/29/EC on copyright in the information society.

The CJEU held that:

• the reproduction of even a very short audio fragment of a phonogram constitutes a partial reproduction within the meaning of Article 2(c) of Directive 2001/29/EC, and is therefore in principle prohibited without authorisation;
• however, where a sample is incorporated into a new work in a modified form that is unrecognisable to the ear, the reproduction does not constitute infringement of the phonogram producer’s rights;
• the right of quotation under Article 5(3)(d) of Directive 2001/29/EC may exceptionally justify sampling, but only where the user intends to enter into a “dialogue” with the original work and where the original work is identifiable;
• EU member states cannot maintain or introduce national exceptions to phonogram producers’ rights beyond those expressly listed in Directive 2001/29/EC.

The decision struck down the longstanding German “free use” doctrine (freie Benutzung) that had previously provided some flexibility for sampling, holding that this national exception was incompatible with the closed list of exceptions under EU law.

Why Pelham reshaped European sampling law

The Pelham decision had immediate and far-reaching consequences across all EU member states, including Italy. The principal effects:

• No US-style de minimis exception: unlike the Ninth Circuit’s VMG Salsoul ruling, the CJEU does not recognise a de minimis threshold for sound recording sampling. Even very short samples constitute partial reproductions and require licensing;
• Modification-and-unrecognisability test: the only meaningful relief for unauthorised samples is when the sample has been modified to the point where the ear cannot recognise it as deriving from the original. This is a fact-intensive test with significant uncertainty;
• Quotation exception extremely narrow: the quotation exception under Article 5(3)(d) was confirmed to apply to music in principle, but its scope is so narrow (the original must be identifiable, the use must be for “dialogue” with the original) that it provides little practical refuge for commercial sampling;
• National exceptions struck down: any national flexibility for sampling that EU member states had developed (German “free use”, potential interpretations in other jurisdictions) was eliminated. EU copyright is a closed system.

For sampling practice in Europe, Pelham effectively imposed a strict licensing regime. Subsequent CJEU jurisprudence and national court applications have generally confirmed this strictness.

The divergence: US vs EU sampling frameworks

The combined effect of VMG Salsoul (in the US Ninth Circuit) and Pelham (across the EU) creates a profound divergence in sampling law between the two jurisdictions:

For artists, labels, and producers operating cross-border, this divergence has significant strategic implications. A track that can be released in the US under VMG Salsoul reasoning may face infringement claims in Italy or other EU member states under Pelham. Cross-border releases of sampled tracks require careful clearance strategy.

The Italian framework on sampling

Italian copyright law incorporates the EU framework directly through transposition of the relevant directives. Law no. 633/1941 (the Italian Copyright Act), as amended over decades by reforms transposing EU directives, includes the provisions on phonogram producers’ rights (Article 78-bis ff.) and performers’ rights (Article 80 ff.) that mirror Directive 2001/29/EC and subsequent EU instruments.

The Pelham decision is therefore directly applicable in Italy. Italian courts, when faced with sampling disputes, apply the Pelham framework: any identifiable sample requires authorisation, modification-to-unrecognisability is the only relief, and the quotation exception (Article 70 of the Italian Copyright Act) is interpreted narrowly in line with the CJEU’s restrictive approach.

Italian jurisprudence on sampling has been relatively limited compared to Germany or the US, but the available case law follows the European framework consistently. Italian music producers and labels, particularly in electronic, hip-hop, and contemporary genres, operate within this strict licensing regime.

For productions accessing the Italian cinema tax credit (D.I. MiC-MEF 225/2024 and 329/2024), sampling clearance is part of the chain of title scrutinised in audit procedures. Defective sample clearance can compromise the tax credit eligibility of the entire production.

Sampling clearance practice in Italy and Europe

Given the strict EU framework, professional sampling practice in Italy and Europe requires comprehensive clearance procedures:

Identifying the rights holders

For each sample, identify both the composition rights (music publisher) and the master rights (record label or current rights holder after catalogue transactions). For older recordings, ownership may have changed multiple times — careful chain of title verification is essential.

Negotiating the clearance

Sample clearance involves negotiating two parallel licences:

• Sample use licence from the music publisher: typically structured as a fee plus a royalty share on the new track (often 25-50% of the composition share, depending on prominence of the sample);
• Master use licence from the record label: typically structured as a fee plus a royalty share on the master (often 25-50% of the master share, depending on prominence).

Premium samples from iconic recordings can command significant fees and large royalty shares. Mid-tier samples are more commercially negotiable. Indie and lesser-known repertoire is typically more accessible.

Documentation and chain of title

Every cleared sample must be documented in writing with specific identification of the sampled work, the terms of the clearance, the royalty splits, and the territorial scope. Italian and EU productions require comprehensive documentation for E&O insurance, tax credit compliance, and broadcaster delivery.

Streaming and CMO registration

Cleared samples affect the metadata of the new track for streaming and CMO registration. Both the new track’s writers and the sampled work’s writers receive their respective shares of mechanical and performance royalties through SIAE/Soundreef (Italy) and equivalent foreign CMOs.

Failure modes and litigation

Productions that release sampled tracks without comprehensive clearance face significant risks: cease and desist letters, injunctive relief halting distribution, retroactive licensing at premium prices, damages claims, and reputational consequences. Italian and European courts apply the Pelham framework strictly, and pre-litigation settlement strategies typically involve substantial retroactive licensing fees and royalty assignments.

AI-generated samples: the 2025-2026 regulatory dimension

The emergence of AI tools that can generate samples — by training on existing recordings and producing new audio in similar styles — adds a new regulatory dimension to sampling law:

• EU AI Act (Regulation 2024/1689): imposes transparency obligations on AI-generated content, including the obligation to disclose AI-generated audio fragments in commercial music releases;
• Italian Law 132/2025 on artificial intelligence: integrates the national framework with provisions on the use of AI in creative works, including specific obligations on transparency and traceability of AI-generated content;
• Training data and source recordings: where AI models are trained on copyrighted recordings, the use of those recordings in training may itself be a copyright issue. EU law on text-and-data-mining exceptions (Article 4 of the DSM Directive) provides limited flexibility for commercial uses, with rights holders’ opt-out mechanisms;
• “AI samples” that imitate but do not directly reproduce existing recordings: these fall in a more uncertain legal area. If an AI-generated audio fragment is independently created and does not literally reproduce a copyrighted recording, traditional copyright infringement claims may not apply — but personality rights (where an artist’s voice is imitated), unfair competition claims, and the AI Act transparency obligations remain.

For artists and producers using AI tools in music production, including AI-generated samples, the 2024-2026 regulatory framework requires:

• verification of the AI model’s training data and licensing status;
• transparency in labelling AI-generated content in commercial releases;
• contractual clauses on AI use in production agreements (composer agreements, master use licences, sync licences);
• navigation of the evolving CJEU and national court jurisprudence on AI and copyright.

Strategic implications for artists, labels, and producers

The combined framework of VMG Salsoul, Pelham, and the 2024-2026 AI dimensions has practical strategic implications:

For artists and producers: do not assume US-style de minimis flexibility in Italy or the EU. Every identifiable sample, however short, requires clearance. Plan sampling budgets and clearance timelines into production schedules. Use cleared sample libraries (Splice, Sounds.com, Loopmasters) for unlicensed-by-default content, and reserve negotiated clearance for samples that are creatively essential.

For labels and music publishers: comprehensive sample clearance procedures protect against downstream litigation and platform takedown risks. Pre-release verification of sample documentation should be part of standard A&R quality control. For catalogue acquisitions, sample clearance history should be part of due diligence.

For audiovisual productions using sampled music: the chain of title for sampled tracks must include all sample clearances. E&O insurance and Italian tax credit audit procedures will scrutinise this documentation. Productions cannot rely on the “track is on Spotify, therefore it’s cleared” assumption — uncleared samples on commercial releases do exist and create downstream liability for the productions that use them.

For artists facing sampling claims: assess the strength of the claim under the applicable Pelham framework. The modification-to-unrecognisability defence is fact-intensive and requires expert audio analysis. Settlement strategies typically involve retroactive licensing and royalty assignments rather than litigation, given the Pelham framework’s strictness.

For cross-border releases: a track that may be defensible in the US under VMG Salsoul may face infringement claims in Italy or other EU member states under Pelham. Clearance strategies should be calibrated to the strictest applicable jurisdiction.

Frequently asked questions

Is sampling legal without permission in Italy?

No. Following the CJEU Pelham decision (Case C-476/17, 2019), any identifiable sample of a sound recording — however short — requires authorisation from the phonogram producer in Italy and across the EU. Unauthorised sampling constitutes copyright infringement.

Does the US “de minimis” rule apply in Italy or Europe?

No. The CJEU explicitly rejected a de minimis exception for sound recording copyrights in Pelham. The US Ninth Circuit’s VMG Salsoul reasoning has no application in Italy or the EU. The only relief is the modification-to-unrecognisability test, which is narrow.

What is the modification-to-unrecognisability test?

Under CJEU Pelham, a sample that has been modified to the point where the ear cannot recognise it as deriving from the original work does not constitute infringement of the phonogram producer’s rights. The test is fact-intensive: expert audio analysis is typically required to assess unrecognisability. The bar is high, and most commercial samples remain identifiable to some degree.

Can I use the music quotation exception for sampling?

Only in very narrow circumstances. The CJEU confirmed that the quotation exception under Article 5(3)(d) of Directive 2001/29/EC applies in principle to music, but requires that the user intends to enter into a “dialogue” with the original work and that the original work is identifiable. Commercial sampling for purely musical purposes generally does not meet this test.

What samples are safe to use without clearance?

Samples from sources that have already cleared the rights for re-use: licensed sample libraries (Splice, Sounds.com, Loopmasters), royalty-free or Creative Commons-licensed materials, and public domain recordings where applicable. For traditional commercial samples, comprehensive clearance is required.

How much does sample clearance cost in Italy and Europe?

Highly variable. Iconic samples from major artists can cost five- or six-figure upfront fees plus 25-50% royalty shares on the new track. Mid-tier samples are more negotiable. Indie samples are typically more accessible. The cost is determined by the prominence of the original work, the commercial expectations for the new track, and the rights holders’ policies.

What happens if my track containing an uncleared sample is released?

Risks include: cease and desist letters, injunctive relief halting distribution, retroactive licensing at premium prices, damages claims, royalty redirection on subsequent revenue, platform takedown procedures, and reputational consequences. For productions accessing public funding (Italian tax credit, Eurimages), the production may face audit failure.

Can AI-generated samples avoid these issues?

Partially, with caution. AI-generated audio that does not literally reproduce a copyrighted recording may avoid traditional copyright infringement claims, but the EU AI Act and Italian Law 132/2025 impose transparency obligations, and personality rights or unfair competition claims may apply where AI imitates an identifiable artist. Comprehensive legal review is essential before commercial release of AI-generated audio.

What about cross-border releases — a US release of a track sampling Italian music?

The US release would be governed by US sampling law (VMG Salsoul in the Ninth Circuit, Bridgeport in the Sixth, with comprehensive clearance being the industry standard regardless). Italian exploitation (streaming on Italian Spotify, Italian sync licensing) would be governed by Italian/EU law under Pelham. Clearance strategies should accommodate the strictest applicable jurisdiction to enable global release.

How DANDI supports artists, labels, and producers on sampling matters

DANDI.media supports artists, music producers, record labels, music publishers, and audiovisual productions on sampling clearance, sampling disputes, and AI-related sampling issues in Italian and European markets:

• Sample clearance strategy: pre-production analysis of sampling plans, identification of rights holders, clearance pathway design;
• Sample clearance agreements: drafting and negotiation of sample use licences and master use licences for sampled material;
• Catalogue due diligence: sample clearance history review for catalogue acquisitions, label transactions, and rights audits;
• Sampling disputes: claimant and defendant positions in sampling litigation, pre-litigation negotiation, settlement structuring under the Pelham framework;
• AI sampling compliance: legal review of AI tools used in sample generation, training data verification, transparency labelling, contractual structuring under the EU AI Act and Italian Law 132/2025;
• Cross-border clearance: coordination of US and EU clearance strategies for international releases, given the divergent VMG Salsoul / Pelham frameworks;
• Tax credit compliance: sample clearance documentation for Italian cinema tax credit productions under D.I. 225/2024 and 329/2024;
• Sync licensing of sampled tracks: clearance pathway for using sampled tracks in audiovisual productions.

For an initial consultation on a sampling matter — whether you are planning a sampled release, structuring sample clearance for a project, addressing a sampling dispute, or navigating AI-related sampling issues — book a consultation with Avv. Claudia Roggero, founding partner of DANDI.media.

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